(영문) 광주지방법원 2017. 6. 2. 선고 2016가합587 제11민사부 판결

1. It is confirmed that each resolution listed in the separate sheet No. 2 attached hereto, which was held by the Defendant on August 4, 2013, is all null and void.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. The Defendant (hereinafter referred to as the “Defendant clan”) is a clan that is composed of the members of the 16-year-old clan C as a common ancestor and consists of the following descendants, consisting of subordinate members, such as the Diplomatic Association and Ethical Association. The Plaintiff (appointed parties) and the designated members (hereinafter referred to as the “Plaintiff, etc.”) are the members of the Diplomatic Association of the Defendant clan.

B. The main contents of the rules of the defendant clan are as follows.

Section 3(Qualification)The members of this sentence shall be the adults among the descendants of B 16-year-old C. The meetings of Section 13 (Types of Sessions) shall be the ordinary general meeting, the extraordinary general meeting and the substitute committee.The extraordinary general meeting of Section 14(2) shall be convened by the Chairperson when there is an urgent matter.The meetings of Section 15(Quorum) in this sentence shall be held by at least 25 of the present members, and the agenda items shall be decided by the majority of the present members: Provided, That matters concerning the disposal and acquisition of property shall be decided by at least 2/3 of the present members.

C. Defendant clan, under the name of “F’ Speaker Speaker pro tempore G, announced that the case of disposal of valuable property and the case of organizing a special committee on disposal of property, etc. shall be subject to the Gwangju Day newspaper on August 4, 2013. On August 4, 2013, Defendant clan opened an extraordinary general meeting (hereinafter “instant special meeting”), and made each resolution, such as the list of the resolution in attached Table 2, while 46 members of the clan attended the extraordinary general meeting (hereinafter “instant resolution”).

C. G is a clan member of the defendant clan residing in Seocho-gu Seoul Metropolitan Government.

D. On August 21, 2013, the Defendant clan sold each real estate listed in the list of the attached real estate (hereinafter “instant real estate”) in the H regional housing association (hereinafter “H association”) with the price of KRW 4.54 billion, and completed the registration of ownership transfer in the name of H association with respect to the instant real estate on the same day.

[Ground of recognition] Facts without dispute, Gap 1 to 3 evidence, Gap 1 to 1 evidence, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. Defendant clan's assertion

After the defendant clan made the resolution of this case, the real estate of this case was sold to H, a third party, and the registration of ownership transfer was completed in the future of the above H, and even if it is confirmed that the resolution of this case is null and void, the sales contract of this case between the defendant clan and H union does not immediately become null and void. Thus, the plaintiff's lawsuit of this case is unlawful as it does not have

B. Determination

A claim in a lawsuit shall be limited to specific rights or legal relations, and in order to have the benefit of confirmation in a lawsuit for confirmation, the risk and apprehensions existing in the claimant's rights or legal status should be caused according to the legal relations, and in order to eliminate the risk and apprehensions, it is necessary to immediately determine the legal relations by a judgment for confirmation, and it should be the most effective and appropriate means to solve the dispute.

Meanwhile, since the property owned by a clan belongs to the collective ownership of members of the clan, if there is a provision in the clan regulations concerning its management and disposition first, it shall be followed, and if there is no provision in the clan regulations, a resolution of the general meeting of members of the clan shall be adopted, so the members of the clan shall have a specific legal interest in the management and disposition of collective ownership (see Supreme Court Decision 91Da18965 delivered on April 24, 192).

The resolution of this case is about the disposition of the clan's own property of the defendant clan, and the plaintiff et al. of the defendant clan has a specific legal relationship or legal interest in his property, and further, it is reasonable to view that the decision of this case is the most effective and appropriate means for the resolution of the fundamental dispute regarding the sale of the property of the defendant clan (i.e., the disposal of the real property owned by the defendant clan without a legitimate resolution of the general meeting of the clan).

In such cases, even if the transfer registration of ownership in the name of a third party has been completed, such registration shall be deemed null and void.

Therefore, the plaintiff et al., as a clan member of the defendant clan, has the interest to seek confirmation of invalidity of the resolution of this case. The main defense of the defendant clan is without merit.

3. Judgment on the merits

A. The parties' assertion

(1) Plaintiff

The defendant clan held an extraordinary general meeting of this case and announced the convocation in the name of the Speaker pro tempore G who has no authority to call an extraordinary general meeting in making the resolution of this case, and did not call a convocation notice to female clan members and the members of the Diplomatic Association, and held an extraordinary general meeting within 50,000 after the convocation notice in violation of the provisions of Article 71 of the Civil Act, which provided that the convening notice shall be given by stating the purpose of the meeting one week prior to the convocation of the general meeting. As such, the above extraordinary general meeting of this case is seriously defective in the convocation procedure, the resolution of this case by the above general meeting

(2) Defendant

At the time of holding the special general meeting of this case, the defendant clan directly went to the members of the clan who could communicate with some of the members of the clan, and was in the legitimate procedure of convening a notice on convening a daily newspaper for the members of the clan who did not contact with them.

Even if there is a defect in the procedure for convening the special meeting of this case, the resolution of this case was made on October 23, 2005 by holding the council of delegates on October 23, 2005 and the special meeting on October 30, 2005 to sell the real estate of this case and to delegate all the matters related thereto to the special committee. On November 26, 2006 at the D Literature Branch, the resolution of this case was made to ratification the resolution of the Egram suspended meeting, and the contents of the resolution of this case were related to the resolution of this case.

Since the clan members already agreed with their intentions, the defect in the procedure of convening the extraordinary general meeting of this case cannot be said to be serious enough to deny the validity of the resolution of this case.

B. Whether there exists a defect in the procedure of convening the special general meeting of this case

(1) Whether a legitimate person has convened a meeting;

The representative of a clan shall be appointed according to the rules or practices of the clan, and if not, the head of the clan or the head of the clan shall convene and elect persons of age or older among the members of the clan, and if not, the members of the clan shall not be appointed by the head of the clan nor by the head of the clan, and if there is no rules or practice regarding the appointment of the head of the clan, he/she shall notify the current head of the clan or the head of the clan, who is obvious that he/she has resided in Korea and has been residing therein, and shall convene the general meeting, and appoint the representative of the clan at that meeting (see, e.g., Supreme Court Decision 2009Da26596, Dec. 9, 2010). In addition, in order for the resolution of the general meeting of the clan to be valid, it is necessary that the general meeting has been convened by a legitimate convening authority, and if not convened by a legitimate convening authority, the resolution at the above general meeting shall not have the effect (see, e

In this case, according to the health union and the rules of the defendant clan, the general meeting shall be convened by the chairperson. The fact that the public notice of convening the general meeting of this case was made in the name of the clan G of the defendant clan was made in the name of the defendant clan, and according to the records of Gap 11 and 12 evidence (including the branch numbers; hereinafter the same shall apply), the chairperson (representative) of the defendant clan at the time of the general meeting of this case shall be recognized not as G but as having been I.

Therefore, the special meeting of this case is conducted by a person who is not a legitimate convening authority, and there is a defect in the convocation procedure.

(ii)the existence of any defect in the procedure for the convening notice.

Since a clan is a naturally created clan group composed of members of the common ancestor for the purpose of protecting the graves of the common ancestor, conducting religious services, and promoting friendship among the members of the clan, it is reasonable to view that the descendants who share the common ancestor with the common ancestor and its surname naturally become its members when they reach majority without distinction of gender (see, e.g., Supreme Court en banc Decision 2002Da1178, Jul. 21, 2005). Meanwhile, the general meeting of a clan has determined the scope of the members of the clan who are subject to notification notice by the clan, and provided each person with an opportunity to participate in meetings, discussions, and resolutions, and there is no resolution of the general meeting of a clan held without convening a notification to some members of the clan (see, e.g., Supreme Court Decision 2007Da34982, Sept. 6, 2007).

In full view of the overall purport of the debate on this case, the health stand, Gap 4, 7 through 14, 16 through 18, 16 through 4, 4, and 5, the defendant clan did not make any effort to grasp the current status of the female clan members and to determine the scope of the female clan members subject to notification for convocation, and did not individually notify the female clan members [it is limited to the male members subject to attendance at the convocation announcement of the special general meeting of this case (the evidence No. 2) of this case, but it is difficult to recognize that the above convening announcement was given notification to the female clan members belonging to the defendant clan solely on the basis of the facts that the defendant clan did not make efforts to grasp the current status of the female clan members and to determine the scope of the female clan members subject to notification for convocation, and ② the fact that the defendant clan was aware of considerable existence, names, addresses, and contact numbers of the female members belonging to the DNA clan members at the time of holding the general meeting of this case, ③ Nevertheless, it is not individually recognized that the members belonging to the clan members at the time of this case.

Therefore, the special meeting of this case is held without convening a notice on the female clan members and some male clan members, and there is a defect in the convocation notice procedure.

(iii)the existence of any defect for delay in the notification period;

Unless there are special circumstances in the convening of a clan meeting, a muster notice shall be issued to the members of a clan who can communicate one week prior to the convening of the general meeting of the non-corporate association pursuant to Article 71 of the Civil Act, which shall apply mutatis mutandis to the convening of the general meeting of the non-corporate association. However, the purport of the above provision is to guarantee the members' right to discussion and voting rights and to ensure the proper exercise of voting rights. Thus, although the notice of convening a general meeting was issued for a delay of one day or two days compared to the statutory period, there are special circumstances such as where the members are familiar with the purpose of the general meeting in advance, if the member does not interfere with the member's debate and voting rights, the resolution of the general meeting itself is still valid (see Supreme Court Decision 9Da52619, Feb. 11, 20

In convening the general meeting of this case, the defendant clan did not call a notice for convening the general meeting of this case to female clans and the members of the DNA clans, and the fact that the notice for convening the general meeting of this case, which was paid by the defendant clans daily newspapers, was made on July 28, 2013 before the day of the general meeting, was made on July 30 of the same month. Meanwhile, in full view of the purport of the whole arguments in the above evidence, it is recognized that the general meeting of this case was held and the resolution of this case was made when the members of the DNA clans did not call a notice for convening the general meeting of this case while the members of the clans did not attend the general meeting of this case.

Thus, the notice of convening the special meeting of this case has a defect that occurred due to the delay of two days more than the period under the provisions of the Civil Code, and the result that some clans are unable to attend the general meeting has been interfered with their own rights and voting rights. Therefore, the notice of convening the general meeting of this case has been issued.

The defect in the non-compliance of the period is not cured.

C. Whether it is a serious defect

(1) As seen above, the special meeting of this case was not convened by the legitimate convening authority, and there was a defect in failing to observe the notice of convening a convening authority for female clans and some male clans without convening a convening authority.

(2) As to whether the above defects are serious defects, the following facts are acknowledged in light of the purport of the entire pleadings in each of the statements in Gap evidence Nos. 2 through 5, and Gap evidence No. 15 through 19.

(A) On October 23, 2005, the clan members of the defendant clan held a meeting of the board of representatives among the E literature while nine members, including I, were present, and on October 30, 2005, a resolution was passed to sell the instant real estate and to entrust matters to the Special Committee.

(B) On November 26, 2006, the clan members of the defendant clan held an extraordinary general meeting of the Diplomatic Association during the attendance of 16 members including J on November 26, 2006, and passed a resolution to ratification the resolution of the extraordinary general meeting among the Es of the above Es of October 30, 2005.

(C) Even after the resolution of the branch, there has been disputes over the issues regarding the distribution of the real estate sales proceeds between Embry and Dials, the issues regarding the resolution regarding the sale of the instant real estate at the extraordinary general meeting of each branch without going through the entire general meeting of the clans.

(D) On the other hand, according to the rules of the defendant clan, matters concerning the disposal of the property of the clan shall be decided by a resolution of two-thirds or more of the members of the clan in the general meeting of the clan.

(3) According to the above facts, the defendant's clan was appointed respectively by the Embry and D Languages Council in 2005, which was in around 2005.

Even though there was a fact that the resolution was made at the Si Assembly on the sale of the real estate in this case, there was no dispute among the members of the clans later, and there was no reason to determine matters concerning the disposition of the property of the clans by the resolution of each branch of the clans rather than the resolution of the clans' general meeting. In order to solve this problem, the defendant clans decided to hold the general meeting of this case for the whole members of the clans. Therefore, in holding the general meeting of this case, the defendant clans should have held the general meeting in a state where many of the members of the clans are allowed to attend and exchange opinions with each other while they can attend the general meeting. Nevertheless, the above defect that was in the process of convening the general meeting of this case led to the failure of the female clans and the members of the D clans' general meeting of this case, and therefore, the resolution of this case was made in a state where their rights and voting rights were infringed, it is an important defect in the procedure to convene the general meeting of this case.

D. Sub-determination

Since there is a serious defect in the convening process in the special meeting of this case, the resolution of this case, which took place in the special meeting of this case, shall be null and void.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.